Barger v. Plant

ORDER
DISMISSING THE HABEAS CORPUS PETITION WITH PREJUDICE PURSUANT TO RES JUDICATA
DOCTRINE; DENYING A CERTIFICATE OF APPEALABILITY; DIRECTING THE ENTRY OF
SEPARATE FINAL JUDGMENT

VALERIE BAKER FAIRBANK, Senior District Judge.

Proceeding pro se, California state prisoner Gary Dale Barger filed a habeas corpus petition in the U.S. District Court for the Northern District of California on January 27, 2015. See CM/ECF Document ("Doc") 1. On February 3, 2015, that court issued an order (Doc 6) which transferred the petition here because petitioner attacks a Ventura County Superior Court conviction. The Clerk's Office forwarded to chambers his motion to disqualify the undersigned Judge and the Magistrate Judge, bearing the docket number of this case, but chambers staff misplaced the paper original before it could be scanned and filed.[1]

Accordingly, on February 26, 2015, this Court issued an Order which stated in pertinent part as follows:

The Court invites petitioner to submit another copy of the motion to the Clerk's Office. See Frankel v. NYC Dep't of Enviro. Protection, 2008 WL 2156722, *1 (S.D.N.Y. May 20, 2008) (after plaintiff sent a letter stating that the record should reflect that he had submitted a "Replacement Exhibit 20", the Pro Se Office "forwarded to me a 2/26/08 letter sent to it by Mr. Frankel (copy enclosed). Attached to it are... stamps, but no copies of the replacement exhibit 20.' They may have been misplaced. Accordingly, I request Mr. Frankel to mail another replacement Exhibit 20'...."); >Sefton v. Webbworld, Inc., 2001 WL 1512067, *2 (N.D. Tex. Nov. 21, 2001) ("The Copyright Office informed Sefton that, while its records reflected that it had received and application and deposit... on June 9, 1997, it could not find the application and deposit. Consequently, the Copyright Office requested Sefton to resend the materials so it could finish processing his application."). [footnote 2 omitted]

* * *

Petitioner MAY MAIL the Clerk's Office another copy of his motion to disqualify the Magistrate Judge and District Judge in this case, civil case number 2:15-00790-VBF-MAN.

If the Court receives such motion, it will be filed and assigned to District Judge Otero for decision. [footnote 3: See C.D. Cal. General Order 14-03 (June 02, 2014) (Section II.F, Motions to Disqualify) at page 17 lines 15-17....]

Doc 9 at 2. Although the Order issued on Thursday, February 26, 2015, the Court will assume for petitioner's sake that the Clerk's Office did not mail the Order until Friday, February 27, 2015. Although U.S. Postal Service regulations express a general expectation that first-class mail will typically arrive at its destination within the United States within three mailing days, the Court will assume for petitioner's sake that he did not receive the Order until the fourth mailing day, Tuesday, March 3, 2015. Even so, more than seven weeks have elapsed since then, and the Court has received no disqualification or recusal motion bearing this case's docket number. Accordingly, the Court will proceed to the merits of the petition without waiting longer for petitioner to possibly file a disqualification/recusal motion.

Proceeding pro se, California state prisoner Gary Dale Barger also known as Gary Francis Fisher ("petitioner") filed a document entitled "Petition for a Writ of Habeas Corpus" in the United States District Court for the Northern District of California on January 27, 2015 ("petition"). On February 3, 2015, United States Magistrate Judge Carolyn K. Delaney of that court issued an order transferring the petition to this district, because petitioner "attacks a conviction issued by the Superior Court of Ventura County."[2]

Petitioner is a California state prisoner and a frequent federal-court litigant.[3] He is presently incarcerated pursuant to a conviction he sustained in 2012, in Kern County Superior Court Case No. BF134705A. ( See Fisher v. Barrios, No. LA CV 13-08599-VBF-MAN, Doc 2 Ex. 1, transcript of January 6, 2012 change-of-plea hearing and other documents from Kern Cty. Super. Ct. Case No. BF134705A.) By the instant petition, he challenges the validity of a conviction sustained in Ventura County Superior Court on April 30, 2002 (the "2002 Conviction"), which he alleges "didn't happen." Pet. at 1. Petitioner expressly admits that he is not in custody pursuant to the 2002 Conviction. Id. at 1 (petitioner circled "NO" when asked, "Are you now in custody serving this term? (In custody' means in jail, on parole or probation, etc.).")

The Court notes that petitioner has repeatedly challenged the validity of the 2002 Conviction in this district, through prior habeas actions Fisher v. Planet, LA CV 14-04450-VBF-MAN, and Fisher v. Planet, LA CV 14-03356-VBF-MAN. These prior habeas actions were dismissed, with prejudice, as untimely by Judgments entered on September 16, 2014 and September 18, 2014. See LA CV 14-04450-VBF-MAN Doc 9 (Order Dismissing Habeas Petition With Prejudice and Denying a COA) and Doc 10 (Rule 58 Judgment); see also LA CV 14-03356-VBF-MAN Doc 11 (Order Dismissing Habeas Petition With Prejudice and Denying a COA) and Doc 12 (Rule 58 Judgment).

Petitioner did not appeal the dismissals. Nor did he move to extend the time for filing a notice of appeal pursuant to Fed. R. App. P. 4(a)(5) or to reopen the time for filing a notice of appeal pursuant to Fed. R. App. P. 4(a)(6), and the time for appeal is long past in both cases. In any event, this Court's aforementioned September 12, 2014 and September 14, 2014 Judgments would be final, for purposes of res judicata, even if petitioner had timely noticed an appeal to the Ninth Circuit. The federal rule on the preclusive effect of a federal-court judgment is that the pendency of an appeal does not suspend the operation of an otherwise final federal-court judgment for purposes of res judicata. See Sosa v. DirecTV, Inc., 437 F.3d 923, 928 (9th Cir. 2006) (citing Eichman v. Fotomat Corp., 759 F.2d 1434, 1439 (9th Cir. 1985) (citing 1B J. Moore, J. Lucas, and T. Currier, Moore's Fed. Practice ¶ 0.416[3] at 521 (2d ed. 1983))).

Petitioner Barger did not file a motion for reconsideration pursuant to Fed.R.Civ.P. 59(e), which he was allowed to do within 28 calendar days after issuance of each Judgment, see DePrins v. Clark, 566 F.Appx. 608, 610 (9th Cir. 2014) (footnote 3 omitted), nor did he file a motion for relief from judgment pursuant to Fed.R.Civ.P. 60(b).

Thus, the judgment issued by this Court on September 16, 2014 in case number LA CV 14-03356-VBF-MAN, and the judgment issued by this Court on September 18, 2014 in LA CV 14-04450-VBF-MAN, are final. Accordingly, each of the Court's prior determinations that petitioner's challenge to the ...

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